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2010 Supreme(UK) 255
2010 (2) N.C.C. 255
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice B.C. Kandpal and Hon’ble Mrs. Justice Nirmal Yadav
Criminal Appeal No. 665 of 2001
KARAM CHAND – Appellant
Versus
STATE OF U.P. – Respondent
Decided on : 05.05.2010
For the Appellant :Mr. Ramji Srivastava, Advocate
For the Respondent: Mr. Nandan Arya, A.G.A.
Headnote:(A) Criminal Procedure Code, 1973, Sec. 385 — Provision — The appellate court shall send for the record of the case and hear the parties — The finding on merit can only be returned after consideration of the material on record — But in case it is not possible because of the destruction of the record, the proper course for the appellate court would be to direct re-trial after reconstruction of the record — If in spite of positive and constructive efforts to reconstruct the record is not possible then after perusal of the copy of the judgment — And the order passed by the trial court — And hearing the counsel for the parties — The exercise of the power as indicated in Section 385 of the Cr.P.C. can be resorted to. (Para 11)
(B) Narcotic Drugs and Psychotropic Substances Act, 1985, Secs. 8(b) and (c) — Charges under — Provision stated the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify — This section was introduced and came into effect from 29.05.1989 — But the alleged recovery in the present case was made on 4th May 1987 — Accused-appellant is acquitted of the charges framed against him — Bail bonds cancelled and the sureties, discharged. (Paras 14 to 18)
¼v½ n.M izfd;k lafgrk] 1973] /kkjk 385 & ds izkfo/kku ds vUrxZr vihyh; U;k;ky; }kjk dsl ds fjdkMZ ds vk/kkj ij i{kdkjksa dks lquk tk,xk & i=koyh esa miyC/k lcwr ds fopkj.k ds mijkUr xq.knks"k ds vk/kkj ij fu.kZ; ysus ds ckn gh okfil fd;k tk ldrk gS & ijUrq ml n'kk esa tc ;g laHko u gks tks fd fjdkMZ ds u"V gks tkus ds dkj.k gks rks vihysV U;k;ky; ds fy, mfpr mik; ;g gksxk fd og fjdkMZ dks iqu% rS;kj djkus ds ckn dsl dh iqu% lquokbZ ds vkns'k ikfjr dj ns & ;fn fjdkMZ dks iqu% rS;kj djuk ldkjkRed vkSj jpukRed iz;kl djus ds mijkUr Hkh laHko u gks rks fopkj.k U;k;ky; ds fu.kZ; dh izfrfyfi dk voyksdu djus ds mijkUr vkSj i{kdkjkssa ds vf/koDrkvksa dks lquus ds ckn /kkjk 385 lhvkj ih lh ds vUrxZr iznRr vf/kdkjksa dk iz;ksx fd;k tk ldrk gSA ¼izLrj 11½
¼c½ Lokid vkS"kf/k ,oa euksRrstd inkFkZ vf/kfu;e] 1985] /kkjk 8(b) vkSj (c) ds vUrxZr vkjksi fu/kkZj.k & izkfo/kku esa dgk x;k gS fd xkatk dh [ksrh djuk ml fLFkfr esa fuf"k) gS tc rd ml dk mRiknu] dCtk] iz;ksx] miHkksx] d;] fod;] ifjogu] Hk.Mkj.k] varjjkT; vk;kr vkSj varjjkT; fu;kZr fpfdRlh; vkSj oSKkfud mn~ns'; ds vfrfjDr fdlh vU; mn~ns'; dh iwfrZ ds fy, gks tks ml] frfFk ls ykxw gks tk,xk ftls dsUæh; ljdkj ljdkjh xtV esa foKfIr ds }kjk mfYyf[kr djs & ;g /kkjk c<+kbZ xbZ Fkh vkSj fnukad 29-5-1989 ls ykxw gqbZ Fkh ijUrq vkjksfir cjkenxh izLrqr dsl esa fnukad 4-5-1987 dks dh xbZ & vfHk;qDr@vihykFkhZ dks mlds fo#) vkjksfir vijk/k ls eqDr fd;k x;k o tekur izi= fujLr fd;s x;s rFkk tekufr;ksa dks mUeqDr fd;k x;kA ¼izLrj 14 ls 18½
(Per : Hon’ble Nirmal Yadav, J.]
This appeal has been preferred by appellant-Karam Chand under Section 374 (2) of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) against the judgment and order dated 06.02.1997 passed by the 1st Additional Sessions Judge, Dehradun in Session Trial No. 83 of 1987 whereby the appellant has been convicted for the offence punishable under Sections 8(b) & 8(c) read with Section 18 of the Narcotic Drugs and Psychotropic Substances Act and sentence to rigorous imprisonment for 15 years and fine of Rs. 1,50,000/-. In default of payment of fine he has further been ordered to undergo one-year rigorous imprisonment.
2. Since the appeal was filed by the accused-appellant in the Allahabad High Court, record was summoned by the Allahabad High Court. In compliance of letter no. 1225 dated 15.02.2000 from the Section Officer, Criminal Department, High Court, Allahabad for transmission of lower court record in criminal appeal No. 308 of 1997 (Karam Chand Vs. State) pending in the High Court of Allahabad, the Officer in-charge of the Record Room, Dehradun vide letter dated 06.03.2000 informed that the record of the Sessions Trial No. 83 of 1987 (State Vs. Karam Chand) had been completely burnt due to fire in the record room during the night of 7th December 1999. However, it was intimated that every possible efforts were being made for reconstruction of the record and as soon as the record was reconstructed, the same shall be transmitted to the High Court.
3. Vide letter dated 17.06.2005, this Court called for the report of District Judge, Dehradun about the reconstruction of the record. In spite of the several reminders sent to the District judge, Dehradun no intimation with regard to construction of the record was received. This Court again directed the District Judge, Dehradun for taking steps to get the record reconstructed. Thus, in compliance thereof Officer in-charge of Record Room, District Judge, Dehradun sent the reconstructed record which constituted only of photocopy of the judgment of conviction and order of sentence dated 06.02.1997 passed by the trial court. This Court vide letter dated 22nd February 2010 again directed the District Judge, Dehradun to make every possible efforts to get the documents and the evidence of the trial court if available from all sources as the impugned judgment would not be sufficient for disposal of the criminal appeal. The District Judge, Dehradun vide its letter dated 22nd March 2010 submitted that every possible efforts were being made to reconstruct the record and as soon as the record is constructed, the same shall be transmitted to this Court. Thereafter vide letter dated 15.04.2010, the District Judge, Dehradun informed this Court that sincere and concerted efforts were made in compliance with the direction of the High Court for reconstruction of the record but no fruitful result could be yielded. Thus, reconstruction of the record of the Sessions Trial No. 83 of 1987 was not possible.
4. The learned A.G.A. was also directed to obtain the report from the District Magistrate and police authorities as to whether the papers and documents pertaining to this case were available with the prosecution agency or the police authorities and to seek instructions from the Senior Superintendent of Police, Dehradun and the District Magistrate with regard to the reconstruction of the record. On 05.05.2010 learned A.G.A. stated at the bar that he had received information from the office of the District Magistrate that efforts were made to trace out the documents with regard to this case, however, no documents could be available. Learned A.G.A. submitted that written information in this regard is expected to be received by him in due course, which shall be placed before this Court.
5. The record is still incomplete as the copy of the F.I.R., the recovery memos and the other documents, which were placed on record by the prosecution and the defence durin
